Tomlinson v. Tomlinson

• Decision Date: 02 February 2010
• Docket Number: No. 29735.,29735.
• Citation: Tomlinson v. Tomlinson, 119 Conn. App. 194, 986 A.2d 1119 (Conn. App. 2010)
• Court: Connecticut Court of Appeals
• Parties: Debra TOMLINSON v. John A. TOMLINSON.

986 A.2d 1119

119 Conn.App. 194

Debra TOMLINSON v.John A. TOMLINSON.

No. 29735.

Appellate Court of Connecticut.

Argued October 21, 2009.

Decided February 2, 2010.

Richard W. Callahan, for the appellant(plaintiff).

Stuart Hawkins, with whom, on the brief, were Daniel Shepro and Joanne Rapuano, Stratford, for the appellee(defendant).

FLYNN, C.J., and HARPER and DUPONT, Js.

FLYNN, C.J.

The plaintiff, Debra Tomlinson, appeals from the judgment of the trial court granting the motion of the defendant, John A. Tomlinson, to modify the unallocated alimony and child support order incorporated by reference into the judgment dissolving the parties' marriage and from the judgment of the court denying her motion for contempt.On appeal, the plaintiff claims that (1)the court improperly granted the motion to modify because the agreement of the parties expressly precluded modification and (2)the court improperly failed to grant her motion for contempt and awarded her an insufficient amount of attorney's fees and costs.We conclude that parties are expressly authorized by statute to agree to make unallocated periodic alimony and child support nonmodifiable although the court must retain the authority to modify such orders where the evidence demonstrates that the needs of the parties' children warrant modification.The record in the present case is clear that none of the contingencies for which the parties bargained permitting modification had occurred.Additionally, the non-modifiable provision was part of an integrated and comprehensive agreement consisting of all financial orders and property division made a part of the final decree of dissolution.Finally, because the record is devoid of any indication that the minor children of the marriage did not receive proper financial support, the court had no evidentiary ground based on public policy that children receive adequate support to permit modification for that reason.We, therefore, reverse the judgment of the trial court modifying the unallocated alimony and child support order.Because the court's judgment regarding the plaintiff's motion for contempt and attorney's fees was dependent in part on our resolution of the plaintiff's first claim, we reverse that judgment as well.

The record reveals the following undisputed relevant facts.Following an uncontested dissolution hearing held on December 9, 2005, the court, B. Fischer, J., accepted the separation agreement of the parties and incorporated it by reference into its judgment dissolving the parties' marriage.According to the terms of the agreement, the plaintiff and the defendant would have joint legal custody and the plaintiff primary physical custody of the parties' two children.The children, who were ages ten and five at the time, were not represented by counsel.The guardian ad litem for the children signed the agreement directly below a statement indicating that he approved and acknowledged the parties' agreement "with respect to the custody, visitation and counseling issues pertaining to the minor children."

Paragraph 2.1 of the agreement provides in relevant part: "Commencing the first day of the week following the [plaintiff's] removal from the residence at 1158 West River Street, Milford, Connecticut . . . the [defendant] agrees to pay to the [plaintiff] unallocated periodic alimony and child support, until June 30, 2018, or until her death, remarriage, or cohabitation pursuant to [General Statutes] § 46b-86 (b), whichever shall first occur, the sum of Seventy Two Thousand Dollars ($72,000.00) per year or One Thousand Five Hundred Dollars¹($1,384.00) per week.THE UNALLOCATED PERIODIC [ALIMONY] AND CHILD SUPPORT SHALL BE [NON-MODIFIABLE] IN AMOUNT AND TERM OF PAYMENTS EXCEPT AS NOTED ABOVE."²The only exceptions "noted above" in the agreement are those contained within paragraph 2.1 itself.The final sentence of the paragraph is the only portion of the separation agreement typed entirely in capital letters.The parties did not incorporate into their agreement any provision permitting modification of the unallocated support order if primary custody of the children changed.

The parties agreed by way of a stipulated order filed June 12, 2007, that primary physical custody of the children would be transferred to the defendant.However, despite this transfer, the plaintiff still enjoyed visitation with the children two days a week and every other weekend in her home.On November 16, 2007, the defendant filed a motion to modify the unallocated support order, seeking a reduction in the amount of support he paid to the plaintiff on the ground that custody had changed.The plaintiff opposed the motion, filing a motion asking the court to strikethe defendant's modification request and arguing that the agreement by its terms precluded modification.

The court, Turner, J., held a hearing on the defendant's motion on February 6, 2008, during which the plaintiff and the defendant testified.The defendant testified as to the change in custody, noting that he currently covered expenses such as the children's cellular telephones, gymnastics, entertainment and transportation and that the plaintiff did not contribute to these expenditures.The guardian ad litem for the children attended but did not participate in the hearing, and the children were not represented by counsel.We deem it a matter of some considerable significance that the defendant presented no evidence that the children's needs for support had changed or were not being met sufficiently under the agreement.Nothing else in the record indicates that the children's needs were unmet.Nonetheless, the court held that despite the nonmodifiable language of paragraph 2.1, the separation agreement was modifiable.It pointed to paragraphs 2.5 and 2.7 of the agreement,³ which provide direction in the event of a change in or termination of alimony and child support, opining that the provisions demonstrated the parties' clear contemplation of a future change in the unallocated support order.The court found that the change in custody of the children constituted a substantial change in circumstances.

At the conclusion of the hearing, the court granted the defendant's motion and modified the separation agreement, concluding that the defendant no longer was obligated to pay child support to the plaintiff.On the basis of the parties' financial affidavits and the child support guidelines in effect at the time the dissolution judgment entered, the court determined that the child support portion of the unallocated order was $604 per week, and it reduced the defendant's unallocated order or alimony and support to the plaintiff by that amount.The plaintiff subsequently filed a motion for reargument, which the court denied.This appeal followed.Additional facts will be supplied as necessary.

I

The plaintiff first claims that the court improperly granted the defendant's motion to modify the unallocated alimony and child support order.She argues that the parties' agreement, incorporated by reference into the judgment of dissolution, clearly and unambiguously precluded modification of the order except in certain enumerated circumstances, none of which were present here.Thus, she contends, under § 46b-86 (a),⁴the court could not modify the agreement as to child support.In opposition, the defendant maintains that despite the language of the agreement cited by the plaintiff, the court properly modified the child support portion of the agreement under the court's broad power to act in the best interests of the parties' children.Because no evidence was presented that the children's needs were unmet, thereby justifying abrogation of the parties' agreement, we agree with the plaintiff that the agreement was not modifiable under the circumstances present in this case.

We begin by setting forth the applicable standard of review and principles of law underlying the plaintiff's claim.It is well established that a separation agreement, incorporated by reference into a judgment of dissolution, is a contract between the separating parties.SeeIssler v. Issler,250 Conn. 226, 234-35, 737 A.2d 383(1999).Accordingly, our review of a trial court's interpretation of a separation agreement "is guided by the general principles governing the construction of contracts."(Internal quotation marks omitted.)Id., at 235, 737 A.2d 383."If a contract is unambiguous within its four corners, intent of the parties is a question of law requiring plenary review. . . .When the language of a contract is ambiguous, the determination of the parties' intent is a question of fact, and the trial court's interpretation is subject to reversal on appeal only if it is clearly erroneous."(Citation omitted; internal quotation marks omitted.)Honulik v. Greenwich,293 Conn. 698, 711, 980 A.2d 880(2009).Here, the pertinent language of the separation agreement is clear and unambiguous, and, thus, our review of the court's interpretation is plenary.

We first analyze the common law and statutory duty of parental child support and then turn our analysis to why that important policy does not warrant modification of the unallocated order in the present case.The common-law duty of parents to provide for their children preceded recognition and enforcement of that duty in our statutory scheme.SeeGuille v. Guille,196 Conn. 260, 263-64, 492 A.2d 175(1985), citingBurke v. Burke,137 Conn. 74, 75 A.2d 42(1950)."The [parent's] duty to support . . . is a continuing obligation, which ordinarily exists even apart from any judgment or decree of support. . . .A parent has both a statutory and common law duty to support his minor children within the reasonable limits of his ability."(Citations omitted; internal quotation marks omitted.)Kalinowski v. Kropelnicki,92 Conn.App. 344, 350, 885 A.2d 194(2005).Our statutes reflect the parental duty of child support.See, e.g., General Statutes § 46b-37 ...